סוגיה 23- תנאי כתובה: קבורה
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Byיאיר טיקטין
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...וחייב במזונותיה ובפרקונה וקבורתה

רבי יהודה אומר: אפילו עני שבישראל לא יפחות משני חלילין ומקוננת

Ketubot 46b:3
we require both this, i.e., the act of intercourse between the husband and wife, and that, i.e., the woman’s alleged act of intercourse with another man, to be performed in a typical manner in order for the laws of a defamer to apply, as Rabbi Eliezer ben Ya’akov interprets the verses literally, meaning that the husband had intercourse with her and discovered she was not a virgin. Rather, Rav Kahana sent word in the name of Rabbi Yoḥanan that the statement was as follows: He is obligated to pay the fine only if he had intercourse in a typical manner and defamed her with regard to intercourse performed in a typical manner, in accordance with the opinion of Rabbi Eliezer ben Ya’akov. MISHNA: A father has authority over his daughter with regard to her betrothal through money, through a marriage document, or through intercourse. Likewise, a father is entitled to items she has found, and to her earnings, and to effect the nullification of her vows, i.e., a father may nullify his daughter’s vows. And he accepts her bill of divorce on her behalf if she is divorced from betrothal before she becomes a grown woman. And although he inherits her property when she dies, e.g., property she inherited from her mother’s family, he does not consume the produce of her property during her lifetime. If the daughter married, the husband has more rights and obligations than her father had before the marriage, as he consumes the produce of her property during her lifetime, and he is obligated to provide her sustenance, her redemption if she is captured, and her burial upon her death. Rabbi Yehuda says: Even the poorest man of the Jewish people may not provide fewer than two flutes and a lamenting woman, which it was customary to hire for a funeral, as these too are included in the duties of burial. GEMARA: The mishna indicates that a father receives the money of his daughter’s betrothal. The Gemara asks: From where do we derive that the father is entitled to the money of her betrothal? Rav Yehuda said that the verse states, with regard to an emancipated Hebrew maidservant: “Then she shall go out for nothing, without money” (Exodus 21:11), from which it is inferred: There is no money for this master, i.e., her master does not receive money when she leaves him, but there is money for a different master, and who is this? Her father, who also had authority over her, like her master. When she leaves her father’s jurisdiction via betrothal, he is entitled to the betrothal money. The Gemara asks: But one can say that the betrothal money should go to her, as one can derive from the verse that there is no money for this master but there is money for the woman herself when she leaves her father’s domain. The Gemara refutes this suggestion: Now consider, her father accepts her betrothal, i.e., he can accept the money or document of betrothal from the man of his choice, as it is written: “I gave my daughter to this man” (Deuteronomy 22:16). Can one then say that she takes the money when her father accepts the betrothal on her behalf? The Gemara raises a difficulty: But one can say that this applies only to a minor, who does not have a hand, i.e., she is not legally competent to carry out transactions on her own behalf. However, in the case of a young woman, who does have a hand, she should betroth herself and she should also take her own betrothal money. The Gemara answers that there is a different exposition in this regard, as the verse states: “Being in her youth, in her father’s house” (Numbers 30:17), which teaches that all gains that a daughter accrues in her youth, i.e., when she is a young woman, belong to her father. The Gemara asks: But consider that which Rav Huna said that Rav said: From where is it derived that the earnings of a daughter belong to her father? It is as it is stated: “And if a man sell his daughter to be a maidservant” (Exodus 21:7); just as with regard to a maidservant, her earnings belong to her master, so too with regard to a daughter, her earnings belong to her father. Why do I need this exposition? Let him derive it from the phrase “being in her youth, in her father’s house.” Rather, that phrase, “being in her youth, in her father’s house,” is written with regard to the nullification of vows, but it is not referring to monetary matters. And if you would say: Let us derive from here that just as she is under her father’s authority with regard to vows, the same applies to monetary matters, this is not possible, because there is a principle that we do not derive monetary matters from ritual matters, as these are two separate areas of halakha. And if you would say: Let us derive this halakha from the fine paid by the rapist of a young woman, which the Torah explicitly states goes to her father (Deuteronomy 22:29), there is another principle, that we do not derive monetary matters from fines. Each fine imposed by the Torah is a novel law, from which nothing can be learned with regard to other monetary liabilities. And if you would say: Let us derive it from the compensation paid by a rapist for his victim’s humiliation and degradation, which is also paid to her father, the compensation for humiliation and degradation is different, as her father also has a share in it, because he too is humiliated and harmed by this unfortunate episode, and therefore one cannot learn the halakhot of other monetary matters from here. Rather, the Gemara returns to the previous exposition of the verse: “Then she shall go out for nothing, without money” (Exodus 21:11). As for the question of why she does not receive the money herself, the Gemara explains that it is reasonable to assume that when the Merciful One excludes a case by means of this verse, He excludes a case where a girl leaves someone’s authority in the corresponding situation to the case of the Hebrew maidservant. The Gemara raises a difficulty: But this leaving of her father’s authority is not comparable to that leaving of her master’s authority: There, with regard to a master, when he frees her she leaves his authority entirely, whereas in the case of a girl who goes out from the jurisdiction of her father, she still lacks the process of being brought to the wedding canopy. As long as she is not fully married she remains partially under her father’s authority, as he is her heir and has rights to her earnings. The Gemara answers: From the perspective of her father’s right to effect the nullification of her vows, at least, she has left his domain via betrothal, as he no longer maintains exclusive rights to nullify her vows. As we learned in a mishna (Nedarim 66b): With regard to a betrothed young woman, her father and her husband nullify her vows together. Since her father cannot nullify her vows on his own, the two types of leaving are indeed comparable. § The mishna taught that a father is entitled to accept betrothal of his daughter through a marriage document or through intercourse. The Gemara asks: From where do we derive this? The Gemara answers that the verse states: “And she becomes another man’s wife” (Deuteronomy 24:2). Since the verse does not specify how she becomes his wife, the different ways of becoming a wife are compared to each other, i.e., they are considered equal. Accordingly, the various methods of betrothal are the same with regard to the authority of the father. The mishna further taught that a father is entitled to items she has found.
כתובות מ״ח א

תלמוד בבלי, מסכת כתובות, דף מ"ח עמוד א'

"רבי יהודה אומר: אפילו עני שבישראל וכו'".

מכלל, דתנא קמא סבר הני לא.

היכי דמי?

אי דאורחה – מאי טעמא

דתנא קמא , דאמר לא?

ואי דלאו אורחה – מאי טעמא דרבי יהודה?

לא צריכא,

כגון דאורחיה דידיה ולאו אורחה דידה.

תנא קמא סבר:

כי אמרינן עולה עמו ואינה יורדת עמו –

הני מילי מחיים, אבל לאחר מיתה – לא.

ורבי יהודה סבר:

אפילו לאחר מיתה.

אמר רב חסדא אמר מר עוקבא:

הלכה כרבי יהודה.

Ketubot 48a
Rabbi Eliezer ben Ya’akov says that she’era and kesuta should be interpreted as follows: In accordance with her flesh [she’era], i.e., her age, give her clothing [kesuta]. This means that he should not give the garments of a young girl to an elderly woman, nor those of an elderly woman to a young girl. Similarly, kesuta and onata are linked: In accordance with the time of year [onata], give her clothing [kesuta], meaning that he should not give new, heavy clothes in the summer, nor worn-out garments in the rainy season, i.e., the winter, when she requires heavier, warmer clothes. The entire phrase, therefore, refers only to a husband’s obligation to provide clothing for his wife. Rav Yosef taught the following baraita: “She’era,” this is referring to closeness of flesh during intercourse, which teaches that he should not treat her in the manner of Persians, who have conjugal relations in their clothes. The Gemara comments: This baraita supports the opinion of Rav Huna, as Rav Huna said: With regard to one who says: I do not want to have intercourse with my wife unless I am in my clothes and she is in her clothes, he must divorce his wife and give her the payment for her marriage contract. This is in keeping with the opinion of the tanna of the baraita that the Torah mandates the intimacy of flesh during sexual relations. § The mishna teaches that Rabbi Yehuda says: Even the poorest man of the Jewish people may not provide fewer than two flutes and a lamenting woman for his wife’s funeral. The Gemara infers: This proves by inference that the first, anonymous tanna cited in the mishna holds that these are not part of a husband’s obligations. The Gemara asks: What are the circumstances? If this is the common custom in her family at funerals, what is the reason for the opinion of the first tanna who said that he does not have to do so? If he neglected to provide these items he would be treating her with disrespect. And if this is not the common custom in her family, what is the reason for the opinion of Rabbi Yehuda? The Gemara answers: No, it is necessary to state their dispute in a case where it is the common custom for his family according to its social status, but it is not common for her family according to its social status. The first tanna holds: When we say that a woman who marries a man ascends with him, i.e., she must be treated as equal in status to her husband if his social status is higher than hers, and does not descend with him if he is from a lower social status, this applies only when they are alive, but after death the Sages did not enforce this rule. And Rabbi Yehuda maintains: Even after death she must be treated in accordance with his status, which means that if those in his family are mourned with flutes and lamenting women, he must provide the same for her funeral. Rav Ḥisda said that Mar Ukva said: The halakha is in accordance with the opinion of Rabbi Yehuda. Apropos this ruling, the Gemara cites another statement that Rav Ḥisda said that Mar Ukva said: With regard to one who became insane, the court enters his property and feeds and provides a livelihood for his wife, his sons, and his daughters, and it also gives something else, as will be explained. Ravina said to Rav Ashi: In what way is this case different from that which is taught in a baraita: In the case of one who went overseas and his wife claims sustenance, the court descends to his property and feeds and provides a livelihood for his wife, but not for his sons and daughters and does not give something else. If a father is not obligated to sustain his children in his absence, what is different about a situation where he is mad? Rav Ashi said to Ravina: Is there no difference for you between a man who leaves his responsibilities knowingly and one who leaves them unknowingly? A father who lost his sanity did not do so by his own choice, and therefore it can be assumed that he would want to provide for his children from his possessions, despite the fact that he is not obligated to do so. By contrast, if he went overseas he freely decided to depart, and one would think that he would leave enough for his sons and daughters. If he failed to do so, he has demonstrated that he does not want to provide for them. The Gemara asks: What is this something else mentioned in the baraita? Rav Ḥisda said: This is a wife’s ornaments, to which she is entitled in addition to her sustenance. Rav Yosef said: It is money for charity. The Gemara comments: According to the one who says that the court does not pay for a woman’s ornaments from her husband’s property if he has gone overseas, all the more so he maintains that the husband’s property is not taken for charity. Conversely, the one who says that the court does not give money for charity holds that this applies only to charity, but it does give her ornaments, as it is assumed that it is not satisfactory for him that his wife be demeaned by a lack of jewelry. Rav Ḥiyya bar Avin said that Rav Huna said: In the case of one who went overseas and his wife died, the court enters his property and buries her in accordance with his dignity. The Gemara asks: Does the court act in accordance with his dignity and not in accordance with her dignity? What if she came from a more dignified family than her husband? The Gemara answers: Say that Rav Ḥiyya bar Avin meant: Even in accordance with his dignity, i.e., if his family was more distinguished than hers, he must bury her in accordance with the dignity of his family. The Gemara adds: This comes to teach us that she ascends with him to his social status and does not descend with him, and this principle applies even after her death, in accordance with Rabbi Yehuda’s opinion in the mishna. Rav Mattana said: In the case of one who says that if his wife dies, they should not bury her using funds from his property, the court listens to him. The Gemara asks: What is different about the case when he says this command that induces the court to comply with his wishes? It is due to the fact that the property has come before the orphans as an inheritance, while the obligation to bury her is not incumbent upon them but is a duty of the inheritors of her marriage contract. However, even if he did not state the above preference, the property is cast before the orphans and it belongs to them. What does it matter whether or not the husband issued a command to this effect? Rather, the Gemara amends Rav Mattana’s statement: With regard to one who says that if he himself dies, they should not bury him using funds from his property, one does not listen to him, but the court spends his money without resorting to charity. The reason for this is that it is not in his power to enrich his sons by saving them this expense and to cast himself as a burden on the community. MISHNA: Even after she is betrothed, a daughter is always under her father’s authority until she enters

ביאור:

שנינו במשנה ש: ר' יהודה אומר: אפילו עני שבישראל לא יפחת בזמן קבורת אשתו משני חלילים ומקוננת. ומדייקים: מכלל הדברים אתה למד כי התנא קמא [הראשון], סתם משנה, סבר כי הני [אלה] לא בכלל חובת הבעל. ושואלים: היכי דמי [כיצד בדיוק הדבר]? אי דאורחה [אם שכך דרכה], כלומר, כך המנהג במשפחתה לנהוג בזמן קבורה- מאי טעמא [מה הטעם] של התנא קמא שאמר שלא צריך לעשות כן? שהרי אם אינו עושה כן הוא מבזה אותה.

ואי דלאו אורחה [ואם שאין זה דרכה]-

אם כן מאי טעמא [מה הטעם] של ר' יהודה?

ומשיבים: לא צריכא [נצרכה] לומר אלא כגון דאורחיה דידיה ולאו אורחה דידה [שזו דרכו שלו, שבמעמדו ובמשפחתו נהוג כך, ואולם אין זה לפי דרכה שלה [שבמקומה או במשפחתה אין הכל עושים כך;

התנא קמא [הראשון] סבר: כי אמרינן [כאשר אנו אומרים] את הכלל שהאשה הנישאת לאיש עולה עמו (עם בעלה) וצריך לנהוג בה לפי מעמדו ואינה יורדת עמו גם אם הוא במעמד נמוך יותר –

הני מילי מחיים [דברים אלה אמורים בזמן שהם חיים],

אבל לאחר מיתה - לא תיקנו.

ור' יהודה סבר: אפילו לאחר מיתה צריך לנהוג עמה כפי מעמדו, ואם דרך בני משפחתו בחלילים ובמקוננות - חייב גם להביא לה כמו כן בזמן קבורתה.

אמר רב חסדא אמר מר עוקבא: הלכה כר' יהודה.

היכי דמי? "איך דומה"? שאלה הבאה להדגים או לברר פרטים מדוייקים של מקרה או מצב מסויים.

מאי טעמא?מהו הטעם"? מהי הסיבה/ הנימוק?

ביאור: על מה מסכימים תנא קמא ורבי יהודה?

כאשר משפחתו ומשפחתה נוהגים אותם מנהגי קבורה, (ושתי המשפחות לא נוהגות לקבור עם שני חלילין ומקוננת) אין חובה על הבעל לדאוג לשני חלילין ומקוננת בהלוויית אשתו - אפילו לעשיר.

המחלוקת בין תנא קמא ורבי יהודה היא על הכלל 'עולה עמו ואינה יורדת עמו', כאשר שתי המשפחות אינן שוות ברמת החיים שלהן:

לדעת תנא-קמא: כלל זה נאמר רק ביחס לחיובים שחייב הבעל לאשתו בעודה בחיים, אך לאחר מיתתה - הוא חייב לקבור אותה לפי מידתה, ולא לפי מידתו.

לדעת רבי יהודה: הבעל חייב לקבור את אשתו לפי המידה הגבוהה יותר. אם היא הורגלה לרמת חיים גבוהה בנישואיה, בהלווייתה הבעל חייב לממן (לפחות) שני חלילים ומקוננת.

אבן העזר פ״ט:א׳

מתה האשה בחיי הבעל חייב לקוברה וליטפל בכל צרכי קבורתה ובכלל זה האבן שנותנים על הקבר

וכן חייב לעשות לה מספד וקינים כדרך כל המדינה

ואם דרכם להספיד בחלילין לא יפחות משני חלילין ומקוננות אפילו עני שבישראל

ואם היה עשיר הכל לפי כבודו

ואם היה כבודה יותר מכבודו קוברים אותה לפי כבודה שעולה עמו ואינה יורדת:

Shulchan Arukh, Even HaEzer 89:1

(1) If a woman died in the lifetime of her husband, he is required to bury her and to deal with all the needs of her burial, including the gravestone. Similarly, he must arrange a eulogy and hire professional weepers according to the custom of the state. If their custom is to mourn with flutes, he shall not make do with less than two flutes and professional weepers, even if he is among the poor of Israel. If he was rich, it [burial arrangements] shall be according to his honor. If her honor was greater than his, she must be buried according to her honor, for she rises [in honor] with him, but does not descend.

(2) If he [the husband] did not want to bury her, and another arose and buried her, the court shall take payment from her husband and give it to the other.

(3) If her husband was in a different country, court shall take payment from his property and sell [as needed to raise money, even] without public announcement, and bury her according to his wealth and honor, or according to her honor [whichever is greater].

(4) A widow is not buried from the estate of her [late] husband, but the heirs of her ketubah (marriage contract) must attend to her burial. If she died before swearing the widow's oath [denying any prior collection of the ketubah monies], there is one [authority] who says that the husband's heirs must attend to her burial, but they [most other authories] did not agree with his opinion.

עולה עמו ואינה יורדת עמו: כלל משפטי לפיו האישה זכאית לפחות לאותה רמת-חיים אליה הורגלה טרם נישואיה, ואם בעלה אמיד היא "עולה" ברמה זאת על פי עשרו ויכולתו.

עיון ודיון:

1. במשנה מוצגות שתי דעות: של תנא קמא ושל רבי יהודה.

מיהו/מהו "תנא קמא"?

מה ידוע לכם אודות רבי יהודה?

על מה נחלקים רבי יהודה ותנא קמא?

על מה מסכימים רבי יהודה ותנא קמא?

2. הגמרא מבררת מהו נושא המחלוקת שבמשנה:

מהו ההסבר שהגמרא דוחה? כיצד היא דוחה אותו?

"כגון דאורחיה דידיה ולאו אורחה דידה" – הסבירו את דברי הגמרא!

הציגו את עמדתו של תנא קמא על פי ההסבר של הגמרא.

הציגו את עמדתו של רבי יהודה על פי הסבר זה.

3. "עולה עמו ואינה יורדת"- הציגו את עמדתו של "השולחן ערוך".

האם הוא פוסק כמו רבי יהודה או כתנא קמא? הסבירו!

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